Wednesday, April 7, 2010

Africa Sting Updates

Last week, the DOJ filed a routine discovery notice (see here) that perhaps hints at a much broader case.

In relevant part, the DOJ stated:

"The government has produced to each defendant and his or her co-defendant documents regarding the defendant’s participation in the Country A deal charged in the indictments and historic deals, including emails, invoices and quotes. Documents related to other co-conspirators’ participation in the Country A deal and historic deals have been made available to the defendants upon request." (emphasis added).

Time will tell what is meant by "historic deals."

However this case is already wider than the case charged in January (see here). In March, the DOJ filed a superseding indictment (see here) against Daniel Alvirez, the President of ALS Technologies, Inc. The superseding indictment contains charges against Alvirez not found in the original indictment, specifically charges related to the Republic of Georgia. Alvirez is expected to plead guilty to charges of conspiracy to violate the FCPA as set forth in the superseding indictment and cooperate in the government's investigation.

For more on the DOJ's discovery filing (see here) from Christopher Matthews at Main Justice.

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When the Africa Sting case was first announced, I raised the issue (see here) of whether the defendants could even be found guilty of violating the FCPA's antibribery provisions given that the "foreign official" was not real.

At the time, it was yet known whether the "foreign official" was purely fictitious or an actual, yet non-participating person.

I suspected the later and Main Justice (see here) recently reported that the FBI agents involved in the sting operation were posing as representatives of Ali Ben Bongo - the current president of Gabon and the Minister of Defense of that country from 1999 to 2009.

Because the FCPA's relevant provisions include terms such as influence and induce, it remains an open question whether one can seek to induce or influence an actual, yet non-participating "foreign official."

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Finally, during a status hearing yesterday, Judge Leon indicated (see here) that it was highly unlikely that the cases would go to trial in 2010.

Also at the status conference, defense lawyers continued to argue that the DOJ has not produced sufficient information concerning Richard Bistrong - a key participant in the government undercover sting operation - yet a person who was also recently criminally charged in connection with a separate bribery scheme (see here for the prior post).

Judge Leon reportedly said that the FBI's relationship with Bistrong is "likely relevant to the case" and that DOJ is going to have produce documents and information concerning this issue.